Beware Assumption of Risk Defenses in Maryland Personal Injury Cases

drunk driving crash riskThe driver was drunk or high or both and was the sole, proximate cause of a major crash in which you were injured. The police cite him for negligent driving, dwi and other moving violations. There are witnesses, all of whom blame your driver and as a passenger you are guaranteed a fair offer right?

Not necessarily, because of one of Maryland's arcane legal doctrines, assumption of risk. It means what the words suggest, you assumed a risk that this knucklehead would drive like a lunatic and cause a crash.

The literal wording of the applicable Maryland jury instruction is " A plaintiff cannot recover damages if the plaintiff has assumed the risk of an injury."

The instruction goes on to say: " A person assumes the risk of an injury if that person knows and understands, or must have known and understood, the risk of an existing danger and voluntarily chooses to encounter that danger."

As you can imagine this creates some sticky situations when friends are out drinking and someone has to drive home. The applicable legal language is ambiguous and susceptible to lawyer misuse.

In modern America the prevalence of motor vehicle accidents make riding with a driver who is sober, a trip that has "existing danger" and thus potentially exposes one to " an injury." In practice this sort of argument is rarely made but the theoretical risk exists and the existence of this doctrine is perilous.

The actual invocation of assumption of risk often involves people who have been out drinking together and the passenger either through inattention or intoxication is unaware of the level of intoxication of the prospective driver. If you are drunk and your friend seems not to be and offers to drive, the question becomes whether you " understood" and "choose"to encounter that danger.

Not an easy hair-splitting. Beware.

Robert V. Clark
Maryland Car Accident and Personal Injury Lawyer
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